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PAPENFUS v. NICHAS AND SON (PTY.) LTD.

(ORANGE FREE STATE PROVINCIAL DIVISION.)

 

1969. August 4, 14. DE VILLIERS and HOFMEYR, JJ.

 

Practice.-Judgments and orders.---Summary judgment.---Short notice of application.-Defendant need not invoke Rule of Court 30 (1).

-Onus on plaintiff to show that defendant had waived his rights.

-Onus also on him to show that defendant not prejudiced.

 

When an application for summary judgment was heard the defendant, who had filed an affidavit, had applied in limine that it should be refused on the ground that the notice of the hearing did not comply with the provisions of Rule of Court 32 (2): it was one day short. The Court condoned the defect on the ground that the defendant had not been prejudiced by the irregularity and granted the application. The defendant appealed.

 

Held, that a formal application by the defendant in terms of Rule of Court 30 (1) was not necessary.

 

Held, further, that the onus was on the respondent to show that the appellant had waived his right to object.

 

Held, further, that on the facts the Court could not find such a waiver.

 

Held, further, that the respondent had not shown on a balance of probabilities that the appellant had not been prejudiced.

 

Nichas and Son .(Pty.) Ltd. v. Papenfus, 1969 (2) S.A. 494 (O), reversed.

 

Appeal against a decision of ERASMUS, J. The facts appear from the judgment.

 

H. J. O. van Heerden, for appellant:  In terms of Rule of Court 32 (2) a notice of application for summary judgment must indicate that the application will be placed on the roll on a specific day at least seven days after delivery thereof. The application was, therefore. placed on the roll too early. Harrison v. Hendry, 3 P.H. F29; Jones and Buckle; Magistrate's Courts Practice, 6th ed., p. 360; Ex parte Schoeman, 1943 O.P.D. 197; Ex parte Catsavis, 1941 T.P.D. 81. The Court a quo, however. decided that the appellant, having been aware of the irregularity, took a further step by filing his affidavit and that he, therefore, in view of the provisions of Rule of Court 30, could not rely on the irregularity. The said Rule grants a party an instrument of attack and is only applicable when he takes the offensive and applies for the setting aside of the irregular proceeding. Nothing prevents a party, when the Court is approached for relief against him on irregular process, from relying on the irregularity as a defence, unless he had waived such defence. Even if Rule 30 was applicable the onus rested on the respondent to show that appellant was aware of the irregularity when he filed his affidavit, and no proof in this connection was tendered. As far as waiver is concerned, it is trite law that the party relying thereon must show that the other party, having been aware of his rights, waived them. Acton, N.O. v. Pretoria City Council and Another, 1962 (1) S.A. 115. The mere filing of appellant's affidavit cannot be regarded as a waiver and there is nothing else indicating an unequivocal waiver. Choonora v. Rahim, 1960 (2) S.A. 504; Turkstra v. Früs, 1952 (2) S.A. 342; Breed v. van Pletzen, 1915 E.D.L. 315; Stolz v. Pretoria North Town Council, 1954 (1) S.A. 110. In addition the Court a quo found that the appellant was not prejudiced by the irregularity. In any event short notice creates a presumption of prejudice. Estate Fraser v. Smit, 1915 C.P.D. 369.

 

It is not necessary that an affidavit in reply to an application for summary judgment be prepared with the same precision as a plea, but if an affidavit satisfies the essentials of a plea it stands to reason that it is adequate. The appellant's affidavit did in fact comply with the requirements of Rule 32 (3) (b). Estate Potgieter v. Elliot, 1948 (1) S.A.

1084; Chambers v. Jonker, 1952 (4) S.A. at pp. 635, 640; Lombard v. van der Westhuizen, 1953 (4) S.A. 84; Herbert v. Steele, 1953 (3) S.A. 271; Geysdorp Trading Co. v. Nathym (Pty.) Ltd., 1954 (2) S.A. 575; Fashion Centre and Another v. Jasat, 1960 (3) S.A. 221.

 

S. A. Visser, for respondent: It is admitted that the application for summary judgment was placed on the roll one day too early, but it is submitted that in terms of Rule of Court 30 (1) the appellant should have applied to have it set aside, and as a result of the filing of appellant's opposing affidavit he took a further step in the cause and in terms of the said Rule he can no longer rely on the irregularity. The present case is a suitable one for condonation of the early placing of the matter on the roll. Appellant should, in terms of Rule 32 (3) (b), have convinced the Court that he had a bona fide defence and he should have furnished fully the nature and grounds of such defence and the relative facts on which it was based. Chambers v. Jonker, 1952 (4) S.A. 635; Caltex Oil (S.A.) Ltd. v. Webb and Another, 1965 (2) S.A. 914; Traut v. du Toit, 1966 (1) S.A. 69.

 

Van Heerden, in reply.

 

Cur. adv. vult.

 

Postea (August 14th).

 

236

DE VILLIERS, J.: This is an appeal against the decision of the Court a quo whereby summary judgment was given against appellant in favour of respondent.

 

Respondent sued appellant for payment of certain amounts owed to him by appellant, an agent at Frankfort. In view of the conclusion reached by this Court it is, however, unnecessary to give particulars of respondent's claims. Appellant entered appearance to defend whereupon respondent gave appellant notice that he would apply for summary judgment on 20th February, 1969. Attached to the notice which was served on Tuesday, 11th February, 1969, at Bloemfontein on appellant's attorneys, was the usual declaration required by Rule of Court 32 and wherein it was averred that appellant had no bona fide defence and he was only defending with the object of delaying the action. On Friday, 14th February 1969, appellant signed an affidavit at Bethlehem wherein he averred, inter alia, that even if respondent's claim was good, it had been extinguished by a larger claim which he had against the respondent. This affidavit was served on respondent's attorney at Bloemfontein on 17th February, 1969. On 20th February, 1969, when the application was heard by the Court, the appellant asked in limine that it should be dismissed on the ground that the notice of hearing did not comply with the provisions of Rule of Court 32 (2), it was one day short.

 

The Court a quo found that the notice was defective, but condoned the defect because the appellant had not been prejudiced at all by the defect and thereafter gave summary judgment with costs as prayed, because appellant's affidavit did not comply with the provisions of Rule of Court 32 (3) (b). It is against this order that the appellant now appeals.

 

There is no doubt that short notice was given in the present case. In fact it is common cause between the parties. Rule of Court 32 (2) provides that a notice of application for summary judgment must mention that it will be set down for hearing on a fixed day at least seven days after delivery thereof and "days" means "Court days" (see definition of "Court day" in Rule 1). Further it has been decided by our Courts, that in calculating the prescribed days both the day on which service is effected and the day on which the application is heard must be ignored. (Cf. Ex parte Schoeman, 1943 O.P.D. 197; Ex parte Catsavis, 1941 W.L.D. 81; Harrison v. Hendry, 3 P.H. F29; Jones and Buckle, Magistrate's Courts Practice, 6th ed., p. 360, and cases cited there). The result is that if 11th and 20th February are excluded as well as 15th and 16th February, a Saturday and a Sunday respectively, notice of only six Court days was given.

 

The first argument advanced by Mr. Visser in support of the decision of the Court a quo in respect of the objection in limine is that the appellant was not entitled to object in such an informal way. He should have applied formally in terms of Rule of Court 30 (1) for the setting aside of the irregular notice. I can, however, not agree.

 

Rule 30 (1) reads as follows:

 

"Any party to any cause in which an irregular or improper step or proceeding has been taken by any party, may within 14 days of the taking of such step on proceeding apply to court to set it aside: Provided that no party who has taken any further step in the cause with knowledge of the irregularity or impropriety shall be entitled to make such application."

 

It will be noticed immediately that the Rule uses the word "may". In other words it gives the party to a cause the right to apply for the setting aside of the irregular proceeding on condition that he does so within 14 days and further on condition that he took no further step in the cause while he was aware of the irregularity. It gives to him an instrument of attack, but nowhere does it say specifically or by inevitable inference that he may not object against the irregular process, in the manner it was done in the present case. On the contrary, for many years the last­mentioned procedure was followed in analogical circumstances (cf. Holtzhauzen v. Millman (2nd Jan. 1969 O.P.D.), not reported) notwithstanding the fact that the objector filed a declaration on the merits of the case (cf. Choonora v. Rahim, 1960 (2) S.A. 504 (W)). The fact that the last-mentioned case was decided before the promulgation of uniform Rule of Court 30 (1) does not mean that the ratio decidendi thereof cannot be applied in the present case for Rule 30 (1) does not materially differ from the corresponding Transvaal Rule of Court 37 (the same as that of the Orange Free State) which was binding at that time.

 

The question arises, however, whether appellant waived his right of objecting and whether the circumstances were such that the Court could have condoned the failure to comply with the Rule of Court.

 

In connection with the first question it is clear that the onus was on respondent to show that the appellant, with knowledge of his rights, waived them. (Cf. Acton, N.O. v. Pretoria City Council and Another, 1962 (1) S.A. 115 (T), at p. 119; Stoltz v. Pretoria North Town Council, 1954 (1) S.A. 110 (T). In the present case there is no reason to presume that appellant when he, as I shall later indicate, probably made his declaration on the merits in a hurry and signed it, was aware that short notice had been served on him and that he knew what he should have done. It is much more probable that he was completely unaware and that counsel who later prepared for the case noticed that the pre­ scribed notice of seven Court days had not been given. The fact that appellant did not give notice to respondent the day before the trial that he was going to object in limine does not take the case any further, for even if appellant had noticed the irregularity and decided to object, there was no duty on him to notify the respondent before the trial, of his intention to do so: the facts on which he was relying appeared ex facie the papers before the Court. Then only the fact remains that appellant replied on the merits of the application, but in this connection it has already been authoritatively decided that this fact alone cannot be regarded as waiver. (Cf. Choonora v. Rahim, supra at p. 506). In the result I am of the opinion that the Court a quo could not have found that appellant had waived his right to object. A Court will also not lightly in a case like the present, where extraordinary relief is sought, find that waiver occurred.

 

In connection with the condonation it will be accepted that the Court is entitled to condone short notice of the kind under consideration if there is no prejudice. Here the onus was on respondent to show on a balance of probabilities that there was no prejudice and in my opinion he did not discharge that onus which rested upon him. On the contrary the indications are that in all probability appellant was prejudiced. He resides, as far as can be ascertained from the papers, in Frankfort. The notice was served on Tuesday 11th February on his attorney in Bloemfontein. Probably it had to be posted to Bethlehem and it could not have reached him before Thursday the 13th of February. On Friday 14th February he signed the replying declaration. Thereafter it was posted to Bloemfontein and it reached his attorney in Bloemfontein in time for service here on Tuesday 17th February on respondent's attorney. On this basis appellant did not have much time available to prepare his replying declaration; and short notice was calculated to prejudice him in the absence of facts indicating the contrary (cf. Estate Fraser v. Smit, 1915 C.P.D. 369). It was suggested that appellant could have taken a day or two longer to prepare his declaration, but it would have been risky to have posted it after the weekend. Lengthy arguments were advanced to this Court that appellant's declaration did not comply with the requirements of Rule of Court 32 (3) (b). The reasonable possibility cannot be disregarded that the alleged defects, if they exist at all, can at least partially be ascribed to the short notice. The case of Beach Freeholds (Pty.) Ltd. v. Colley, 1956 (2) S.A. 603 (N) is distinguishable from the present case on the facts.

 

It follows that the Court a quo should have upheld the objection in limine. Mr. van Heerden, who appeared for appellant, indicated that he was not requesting that the application for summary judgment should be dismissed: he would be satisfied with an order postponing the application for 14 days from date of judgment with leave to appellant to amend his affidavit, if he so desires, on condition that the wasted costs in the Court a quo be granted to appellant. In this connection Mr. Visser, for respondent, requested that the question of such costs should stand over for decision at the hearing of the application, but I am not prepared to comply with this request. It was respondent's omission which caused the costs in question.

 

The appeal, therefore, succeeds with costs and the order of the Court a quo is amended to read:

 

"application postponed for 14 days with leave to respondent to amend his replying affidavit if he so desires, and applicant is ordered to pay the wasted costs".

 

For convenience sake the date to which the application is postponed will be regarded as 28th August, 1969.

 

HOFMEYR, J., concurred.

 

Appellant's Attorneys: Symington and de Kok. Respondent's Attorneys: Horwitz, Arvan and Lewis.

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